State v. Mahoney

• Decision Date: 15 December 1961
• Docket Number: No. 575,575
• Citation: 176 A.2d 747,122 Vt. 456
• Parties: STATE of Vermont v. Charlotte Mary MAHONEY.
• Court: Vermont Supreme Court

Page 747

176 A.2d 747

122 Vt. 456

STATE of Vermont v. Charlotte Mary MAHONEY.

No. 575.

Supreme Court of Vermont.

Dec. 15, 1961.

Thomas M. Debevoise, Atty. Gen., William B. Goldsbury, State's Atty., St. Albans, for plaintiff.

Joseph S. Wool and Saul L. Agel, Burlington, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

SMITH, Justice.

The question presented is an interpretation of the legislative intent in the enactment of 13 V.S.A. Chapter 203, Evidence, Subchapter 4, Depositions and Discovery (13 V.S.A. §§ 6721-6727) by the General Assembly of the State of Vermont in its session of 1961.

The section which this Court is asked to interpret in the light of the legislative intent is 13 V.S.A. § 6721, quoted in the following paragraph:

'A respondent in a criminal cause at any time after the filing of an indictment, information or complaint, may take the deposition of a witness, upon motion and notice to the state and other respondents, and on showing that the witness's testimony may be material or relevant on the trial or of assistance in the preparation of his defense, and upon such showing the court, or superior judge, county court judge or municipal judge shall order that the testimony of the witness be taken by deposition.'

The respondent, who is under a plea of not guilty to an indictment charging her with the murder of her husband, made a motion to take the depositions of certain individuals before trial in the Franklin County Court, under the provisions of the statute. As far as is material to the questions now before us the motion of the respondent was to take the depositions of three police officers of the City of St. Albans, as well as the deposition of three doctors, all of whom she stated were witnesses whose testimony would be material and relevant at the trial and of assistance in the preparation of her defense.

The State made no objection to the taking of the depositions of the three doctors as requested by the respondent, but did object to the taking of depositions by the respondent from the three police officers. Upon the trial court granting the motion of the respondent the State has filed its notice of appeal here. The brief of the State is confined entirely to the granting of the motion to take the deposition of the police officers. Error is claimed on the ground that a police officer is not a 'witness' within the meaning of 13 V.S.A. § 6721, concerning information which comes to such officer's attention during an investigation in preparation of the case of the State.

The statute here sought to be interpreted is unique in that no similar right of deposition before trial is given to a respondent in a criminal cause in either the Federal jurisdiction or in that of any of the other States. It is not an amendment of an existing statute but is an entirely new enactment by the Legislature, granting a right to a respondent in a criminal matter that did not previously exist.

The State's first contention is that by the use of the word 'witness' in the act the legislative intent was to limit the meaning of that word to an 'occurrence' witness, that is a witness 'who beholds, or otherwise has personal knowledge of' the crime with which a respondent is charged.

'The whole concern of statutory interpretation is the fulfillment of legislative intent. The definitive source of that intent is the statute itself, if the language of the enactment plainly sets it forth. Only when the objective of the legislation would be defeated by literal enforcement of statutory provisions can the Court, in construing a particular law, depart from the ordinary and usual meaning of the language used therein. Otherwise, enforcement must be according to the statute's obvious terms.' Town of St. Johnsbury School District v. Town School District of Topsham, 122 Vt. 268, 271, 169 A.2d 352, 354.

The obvious meaning of the word witness is one who testifies to what he knows. 2 Bouv. Law Dict., Rawle's Third Revision, p. 3475. But the State argues that a study of the history of the enactment will disclose that the legislative intent was to restrict 'witness' to one who was an actual occurrence witness in defining from whom a deposition could be taken. A consideration of the history of the enactment is proper for our consideration in determining the meaning of a particular word used in a statute and we now do so. Town of Randolph v. Montgomery, 109 Vt. 130, 136, 194 A. 481.

A bill, which eventually became 13 V.S.A. § 6721 et seq. was introduced in the House of Representatives of the Legislature. The bill so introduced (H. 167, 1961) and which passed the House, repealed 13 V.S.A. §§ 6681, 6682, 6683 and 6684. These sections of the law allow the taking of a deposition for testimony in perpetuam in criminal cases. For a full exposition of such sections, see Hackel v. Williams, 122 Vt. 168, 167 A.2d 364. The bill entitled 'An Act Relating To Depositions And Discovery In Criminal Matters And To Repeal 13 V.S.A. Sec. 6681-6684,' sought to enact what amounts to an exact copy of Rule 15 and Rule 16 of the Federal Rules of Civil Procedure, 28 U.S.C.A., as law in the State of Vermont.

Upon being sent to the Senate, the bill was referred to the Judiciary Committee of that body. While in the hands of that Committee the bill underwent a metamorphic change. The provisions relating to the repeal of 13 V.S.A. §§ 6681, 6682, 6683 and 6684 were deleted, and the bill took on its present form as found in 13 V.S.A. § 6721 et seq. In this form it passed both Houses and became a statute.

It is the rather tenuous reasoning of the State that the legislative intent to limit the word 'witness' to 'occurrence witness' occurs because the Chairman of the Senate Judiciary Committee appeared in his professional capacity as attorney for the defendant in the case of Hackel v. Williams, supra, in which this attorney argued that the statute then being considered allowed a respondent to take depositions for preparing his case. The thin thread of argument is that because the witness, whose deposition was then being sought in Hackel v. Williams, supra, by the counsel for the defendant was, as the State claims, an occurrence witness, that the attorney involved, in his alter ego as Chairman of the Senate Judiciary Committee, must have had the intent to limit the meaning of the word 'witness' in the statute now being considered. This, says the State, is evidence that such intention on the part of the attorney became that of the Legislature. Lacking before us is any history of the enactment that discloses that the Chairman of the Senate Judiciary Committee drew or amended the final version of the bill, or that any statement was made by him, or anyone else in the legislative proceedings that the meaning of the word witness was to be limited as the State here contends. Even if this were so we would doubt that it would have the effect which the State would give it in the ascertaining of legislative intent.

Our rule is that every part of a statute must be considered and, if possible, effect given to every word, clause and sentence. Myers and Son, Inc. v. Felopulos, 116 Vt. 364, 367, 76 A.2d 552, 25 A.L.R.2d 665. Under the wording of 13 V.S.A. § 6721, the witness whose deposition may be taken by a respondent in a criminal cause is one whose 'testimony may be material or relevant on the trial or of assistance in the preparation of his defense'.

It is difficult to think of a phrasing that would allow more latitude in the definition of a witness than the one just quoted from the statute. Authority to take testimony by deposition is in derogation of the common law and must therefore be strictly construed. In re Peters' Estate, 116 Vt. 32, 35, 69 A.2d 281. But to limit the word 'witness' to 'occurrence witness' under the liberality expressed by the Legislature in its use of that word in the statute now under consideration would be a clear negation on the part of this Court of the clear and expressed intent of the law-making body.

The State contends that if the police officers are witnesses whose depositions might otherwise be taken under 13 V.S.A. § 6721 et seq. the taking of such depositions from them is prohibited because as police officers they are agents of the State, and that as such agents of the State any knowledge obtained by them in their investigation of the alleged crime is the knowledge of the State. In support of this argument the State says the rule is that, in the absence of statutes so providing, the State, when a plaintiff, may not be required through its officers and agents to submit to an examination before trial on request of the defendant, citing People ex rel. Port Petroleum Corp. v. Atlantic Coast Terminals, Inc., 2 A.D.2d 153, 163 N.Y.S.2d 913; 27 C.J.S. Discovery § 29(3), p. 75.

We agree that such is the rule on the taking of depositions in civil actions in the absence of statutory provisions to the contrary, but the statute with which we are concerned relates only to depositions allowed in...